Opinion
DOCKET NO. A-4023-12T3
07-10-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. BENJAMIN MILLAN-MERINO, a/k/a, JOSE REYES-MILLAN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Lauren S. Michaels, Assistant Deputy Public Defender, of counsel and on the briefs). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez and Ostrer.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 12-03-0601.
Joseph E. Krakora, Public Defender, attorney for appellant (Lauren S. Michaels, Assistant Deputy Public Defender, of counsel and on the briefs).
Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Benjamin Milan-Merino appeals the December 7, 2012 Law Division decision denying him admission to the Monmouth County Pretrial Intervention Program (PTI). After the denial, on January 14, 2013, defendant entered a guilty plea to fourth-degree assault by auto, N.J.S.A. 2C:12-1(c)(2), count three of Indictment No. 12-03-0601. He was thereafter sentenced to time served, 494 days of incarceration. Appropriate fines and penalties were imposed. We affirm.
It is undisputed that, on October 23, 2011, while driving a stolen Chevrolet pickup truck, defendant collided head-on with a two-door Mitsubishi driven by a sixty-seven-year-old man who suffered injuries as a result. At the time, defendant was attempting to make a left-hand turn the wrong way onto a one-way street.
The officer who responded to the accident scene described defendant's speech as slurred, and defendant's eyes as bloodshot and watery. The officer detected the odor of alcoholic beverages emanating from defendant's person. Defendant admitted that, prior to driving, he consumed multiple six-packs and two forty-ounce bottles of beer. After conducting field tests, the officer arrested defendant, charged him with driving while intoxicated, N.J.S.A. 39:4-50, and drove him to police headquarters.
According to the Alcotest results, defendant's blood alcohol content (BAC) was .23 percent. During processing, defendant provided a false name and birth date. He is an undocumented alien. After the Alcotest, defendant gave the officer his real name and actual date of birth. Defendant was subsequently indicted for third-degree receiving stolen property, N.J.S.A. 2C:20-7(a) (count one); fourth-degree hindering apprehension, N.J.S.A. 2C:29-3(b) (count two); and the assault by auto.
Defendant, whose prior record was limited to a 2003 arrest in Arizona for driving while under the influence and related charges (the disposition is unknown), had lived in this country for some ten years. He claimed to have worked as a laborer for a construction company "off the books."
Once charged, defendant applied for admission into PTI. The program director recommended admission, however, on July 17, 2012, the prosecutor rejected defendant from the program. Defendant subsequently appealed the decision to Judge Ronald L. Reisner, who affirmed the prosecutor's rejection in a decision rendered from the bench. We affirm that decision, essentially for the reasons stated by the judge, with the following brief comments.
As Judge Reisner said, "it was only by a [] miracle . . . that the [other driver] only suffered minor injury." Defendant's prior criminal history included an arrest for driving while intoxicated years prior while he lived in Arizona. In the judge's opinion, these factors were properly considered by the prosecutor in denying the application because defendant previously encountered legal problems as a result of drinking and driving, yet repeated the conduct with grave consequences.
In light of defendant's citizenship status, it was not surprising that he initially gave a false name to the arresting officer, resulting in the hindering apprehension charge. That defendant's presence in this country may not have been legal was not a per se disqualifier; however, it was a factor the prosecutor properly took into consideration when assessing the wrongfulness of his conduct in providing the authorities with false information.
To summarize, although the judge opined that it was reasonable for the probation officer to recommend admission, the prosecutor was "free to reevaluate the factors. And, ultimately, the Prosecutor's decision c[ould] outweigh the recommendations of the probation officer." Given a prosecutor's wide discretion in making PTI determinations, to which a judge must generally defer, he would not substitute his judgment for that of the prosecutor, even if he disagreed with the decision. The statutory factors that the prosecutor enumerated in support of rejection from PTI were properly evaluated, had support in the record, and there was no basis for finding that the rejection was "arbitrary, irrational or otherwise an abuse of discretion." Accordingly, defendant's appeal was denied.
On this appeal, defendant reiterates that the prosecutor's decision was based on his failure to conduct an "individualized assessment of [defendant]," was not premised on a consideration of all relevant factors, and constituted a clear error in judgment that subverted the goals underlying the PTI program. We cannot agree.
We review a prosecutor's decision denying a defendant's admission into PTI deferentially. State v. DeMarco, 107 N.J. 562, 566 (1987); State v. Leonardis, 73 N.J. 360, 381 (1977). The extent to which we defer to such decisions has been described as "enhanced deference" or "great deference." DeMarco, supra, 107 N.J. at 566; Leonardis, supra, 73 N.J. at 381. A defendant who is attempting to overcome such a rejection by the prosecutor bears a heavy burden to demonstrate, clearly and convincingly, a patent and gross abuse of discretion. Leonardis, supra, 73 N.J. at 382. Defendant has not met that burden.
Although defendant was not actually convicted in Arizona of similar charges, the fact that defendant engaged in the same conduct charged in the prior arrest can be properly factored into the equation. The DWI arrest should have deterred defendant from driving under the influence. See State v. Brooks, 175 N.J. 215, 229 (2002). Defendant's conduct on this occasion harmed an innocent victim. His driving was highly impaired by the substantial amounts of alcohol he consumed, as demonstrated by his dramatically erratic driving. As Judge Reisner pointed out, defendant's BAC was nearly three times the legal limit. He was driving a stolen vehicle, although he denied any knowledge of that fact. Defendant was employed, but working "off the books."
Defendant has neither identified the factors that the prosecutor and the court ignored in reviewing his application nor the factors that were improperly weighed in the balance. Defendant has not demonstrated a patent and gross abuse of discretion or, indeed, any reason his rejection from PTI subverted the policy goals of the statute.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION